CHANGE IN CONTROL/SEVERANCE AGREEMENT
Exhibit
10.15
THIS AGREEMENT is made by and between Guaranty Financial Group Inc., a Delaware corporation
(the “Company”) and <name> (the “Executive”).
W
I T N E S S E T H:
WHEREAS, the Executive currently is employed by the Company and a party to a Change in Control
Agreement (the “Existing CIC Agreement”) with the Company;
WHEREAS, the Board recognizes that, as is the case with many publicly held corporations, the
possibility of a Change in Control exists and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or distraction of
management personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that Executive should receive an additional change in
control agreement as set forth herein and this additional change in control agreement shall not
replace or supersede Executive’s Existing CIC Agreement but shall be an additional benefit to the
Executive;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Company and the Executive hereby agree as follows:
1. Defined Terms. The definitions of capitalized terms used in this Agreement are provided in
the last Section hereof.
2. Term of Agreement. The Term of this Agreement shall commence on the Effective Date and
shall continue in effect through the second anniversary of the effective date of the Existing CIC
Agreement (the “Initial Term”); provided, however, that commencing on the first anniversary of the
effective date of the Existing CIC Agreement, and on each anniversary of the effective date of the
Existing CIC Agreement thereafter, the Term shall automatically be extended for one additional year
unless, not later than 90 days prior to each such date, the Company or the Executive shall have
given notice not to extend the Term; and provided, further, that if a Change in Control shall have
occurred during the Term, the Term shall expire no earlier than 24 months beyond the month in which
such Change in Control occurred.
3. Company’s Covenants Summarized. In order to induce the Executive to remain in the employ of
the Company and in consideration of the Executive’s covenants set forth in Section 4 hereof, the
Company agrees, under the conditions described herein, to pay the Executive the Severance Payments
and the other payments and benefits described herein. No Severance Payments shall be payable under
this Agreement unless there shall have been a termination of the Executive’s employment during the
Initial Term by the Company without Cause or by the Executive with Good Reason or unless there
shall have been (or, under the terms of the second sentence of Section 6.1 hereof, there shall be
deemed to have been) a termination of the Executive’s employment with the Company following and
within two years after a Change in Control and during the Term. This Agreement shall not be
construed as creating an express or implied contract of employment and, except as otherwise agreed
in writing between the Executive and the Company, the Executive shall not have any right to be
retained in the employ of the Company.
4. The Executive’s Covenants. The Executive agrees that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change in Control during the Term, the Executive
will remain in the employ of the Company until the earliest of (i) a date which is six months from
the date of such Potential Change of Control, (ii) the date of a Change in Control, (iii) the date
of termination by the Executive of the Executive’s employment for Good Reason or by reason of
death, Disability or Retirement, or (iv) the termination by the Company of the Executive’s
employment for any reason.
5. Compensation Other Than Severance Payments.
5.1 During the Initial Term or otherwise following a Change in Control and during the
Term, during any period that the Executive fails to perform the Executive’s full-time duties
with the Company as a result of incapacity due to physical or mental illness, the Company
shall pay the Executive’s full salary to the Executive at the rate in effect at the
commencement of any such period, together with all compensation and benefits payable to the
Executive under the terms of any compensation or benefit plan, program or arrangement
maintained by the Company during such period (other than any disability plan), until the
Executive’s employment is terminated by the Company for Disability.
5.2 If the Executive’s employment shall be terminated for any reason during the Initial
Term or otherwise following a Change in Control and during the Term, the Company shall pay
the Executive’s full salary to the Executive through the Date of Termination at the
Executive’s then current salary (determined without regard to any reduction constituting
Good Reason) together with all compensation and benefits payable to the Executive through
the Date of Termination under the terms of the Company’s compensation and benefit plans,
programs or arrangements as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive, as in effect immediately prior to the first occurrence of
an event or circumstance constituting Good Reason.
5.3 If the Executive’s employment shall be terminated for any reason during the Initial
Term and otherwise following a Change in Control and during the Term, the Company shall pay
to the Executive the Executive’s normal post-termination compensation and benefits as such
payments become due. Such post-termination compensation and benefits shall be determined
under, and paid in accordance with, the Company’s retirement, insurance and other
compensation or benefit plans, programs and arrangements as in effect immediately prior to
the Date of Termination or, if more favorable to the Executive, as in effect immediately
prior to the occurrence of the first event or circumstance constituting Good Reason.
5.4 For the two-year period commencing immediately following a Change in Control and
during the Initial Term, the Company agrees (A) to provide the Executive with benefits
substantially similar to the material benefits provided to the Executive under any of the
Company’s executive compensation (including bonus, equity or incentive compensation),
pension, savings, life insurance, medical, health and accident, or disability plans in which
the Executive was participating immediately prior to the Change in Control (or, during the
Initial Term, immediately after the Effective Date), and to provide the Executive with a
number of vacation days that would be no less favorable to the Executive than the number
determined in accordance with the vacation policy in effect immediately prior to the Change
in Control (or, during the Initial Term, immediately after the Effective Date) on the basis
of the Executive’s years of service with the Company, (B) to timely pay to the Executive any
portion of the Executive’s current compensation, or timely pay to the Executive any material
portion of an installment of deferred compensation under any deferred compensation
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program of the Company, and (C) not to take any other action that would directly or
indirectly deprive the Executive of any material fringe benefit enjoyed by the Executive
immediately prior to the Change in Control (or, during the Initial Term, immediately after
the Effective Date), exclusive of any across the board reductions affecting all similarly
situated employees.
6. Severance Payments.
6.1 If the Executive’s employment is terminated either during the Initial Term or
otherwise following a Change in Control and within two (2) years after a Change in Control
(provided that such termination of employment constitutes a “separation from service” within
the meaning of Section 409A of the Code), in either event other than (A) by the Company for
Cause, (B) by reason of death or Disability, or (C) by the Executive without Good Reason,
then the Company shall pay the Executive the amounts, and provide the Executive the
benefits, described in this Section 6.1 (“Severance Payments”) and Section 6.2, in addition
to any payments and benefits to which the Executive is entitled under Section 5 hereof. For
purposes of this Agreement, the Executive’s employment shall be deemed to have been
terminated following a Change in Control by the Company without Cause or by the Executive
with Good Reason, if (i) the Executive’s employment is terminated by the Company without
Cause prior to a Change in Control (whether or not a Change in Control ever occurs) and such
termination was at the request or direction of a Person who has entered into an agreement
with the Company the consummation of which would constitute a Change in Control, or (ii) the
Executive terminates his employment for Good Reason prior to a Change in Control (whether or
not a Change in Control ever occurs) and the circumstance or event which constitutes Good
Reason occurs at the request or direction of such Person. For purposes of any determination
regarding the applicability of the immediately preceding sentence, any position taken by the
Executive shall be presumed to be correct unless the Company establishes to the Board by
clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the Executive for periods
subsequent to the Date of Termination, the Company shall pay to the Executive a lump
sum severance payment, in cash, equal to one (1) times the sum of (i) the Executive’s
highest base salary as in effect during the three-year period ending immediately
prior to the Date of Termination (including, if the Date of Termination occurs within
three years after the effective date of the Existing CIC Agreement, salary paid in
respect of employment by Temple-Inland Inc. (“Temple-Inland”) or its Affiliates
during such three-year period) and (ii) the Executive’s target annual bonus pursuant
to any annual bonus or incentive plan maintained by the Company in respect of the
fiscal year in which occurs the Date of Termination (or, if higher, the greatest
actual annual bonus in respect of any of the three preceding fiscal years (including
as applicable, with respect to years ending at or before the effective date of the
Existing CIC Agreement, annual bonuses paid by Temple-Inland)).
(B) For an additional one-year period immediately following the end of the
two-year period provided for in Section 6.1(B) of the Existing CIC Agreement, the
Company shall arrange to provide the Executive and his dependents life, accidental
death and dismemberment, medical and dental benefits substantially similar to those
provided to the Executive and his dependents immediately prior to the Date of
Termination or, if more favorable to the Executive, those provided to the Executive
and his dependents immediately prior to the first occurrence of an event or
circumstance constituting Good Reason, at no greater cost to the Executive than the
cost to the Executive immediately prior to such date or occurrence; provided,
however, that such health and welfare benefits shall be provided
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through an arrangement that satisfies the requirements of Sections 105 and 106
of the Code. To the extent that health and welfare benefits of the same type are
received by or made available to the Executive during the three-year period following
the Executive’s Date of Termination (which such benefits received by or made
available to the Executive shall be reported by the Executive to the insurance
company or other appropriate party in accordance with any applicable coordination of
benefits provisions), the benefits otherwise receivable by the Executive pursuant to
this Section 6.1(B) shall be made secondary to such benefits; provided, however, that
the Company shall reimburse the Executive for the excess, if any, of the cost of such
benefits to the Executive over such cost immediately prior to the Date of Termination
or, if more favorable to the Executive, the first occurrence of an event or
circumstance constituting Good Reason.
(C) Vesting shall accelerate and restrictions shall lapse on all unvested or
restricted equity or equity-based awards in respect of the Company held by the
Executive, if any, as of the Date of Termination and each stock option to acquire
common stock of the Company and each stock appreciation right in respect of the
Company held by the Executive as of the Date of Termination shall remain exercisable
following the Date of Termination for the full term of such option or stock
appreciation right. This Section 6.1(C) shall not be applicable to any equity or
equity-based awards in respect of Temple-Inland.
(D) In addition to the benefits to which the Executive is entitled under any
defined contribution Pension Plan, the Company shall pay the Executive a lump sum
amount, in cash, equal to the sum of (i) the amount that would have been contributed
thereto or credited thereunder by the Company on the Executive’s behalf during an
additional one (1) year period immediately following the end of the two-year period
provided for in Section 6.1(E) of the Existing CIC Agreement (but not including as
amounts that would have been contributed or credited an amount equal to the amount of
any reduction in base salary, bonus or other compensation that would have occurred in
connection with such contribution or credit), determined (x) as if the Executive made
the maximum permissible contributions thereto or credits thereunder during such
additional one-year period, (y) as if the Executive earned compensation during such
additional one-year period at a rate equal to the Executive’s highest rate of
compensation (as defined in the defined contribution Pension Plan) during the
three-year period ending immediately prior to the Date of Termination, and (z)
without regard to any amendment to the defined contribution Pension Plan made
subsequent to the effective date of the Existing CIC Agreement and on or prior to the
Date of Termination, which amendment adversely affects in any manner the computation
of benefits thereunder, and (ii) the excess, if any, of (x) the Executive’s account
balance under the Pension Plan as of the Date of Termination over (y) the portion of
such account balance that is nonforfeitable under the terms of the defined
contribution Pension Plan.
(E) For an additional one-year period immediately following the end of the
two-year period provided for in Section 6.1(H) of the Existing CIC Agreement, the
Company shall provide the Executive with perquisites, if any, that were applicable
immediately prior to the Date of Termination or, if more favorable, immediately prior
to the first occurrence of an event or circumstance constituting Good Reason,
provided that in no event shall the amount of perquisites to which the Executive is
entitled under this Section 6.1(E) for any taxable year of the Executive affect the
amount of perquisites to which the Executive is entitled under this Section 6.1(E)
for any other taxable year.
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6.2 Excise Tax Gross-Up.
(A) Whether or not the Executive becomes entitled to the Severance Payments, if
any payment or benefit received or to be received by the Executive in connection with
a Change in Control or the termination of the Executive’s employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or agreement
with the Company, any Person whose actions result in a Change in Control or any
Person affiliated with the Company or such Person) (all such payments and benefits,
including the Severance Payments, being hereinafter called “Total Payments”) will be
subject (in whole or part) to the Excise Tax, then, subject to the provisions of
subsection (B) of this Section 6.2, the Company shall pay to the Executive an
additional amount (the “Gross-Up Payment”) such that the net amount retained by the
Executive, after deduction of any Excise Tax on the Total Payments and any federal,
state and local income and employment taxes and Excise Tax upon the Gross-Up Payment,
shall be equal to the Total Payments.
(B) In the event that the amount of the Total Payments does not exceed 110% of
the largest amount that would result in no portion of the Total Payments being
subject to the Excise Tax (the “Safe Harbor”), then subsection (A) of this Section
6.2 shall not apply and the noncash Severance Payments shall first be reduced (if
necessary, to zero), and the cash Severance Payments shall thereafter be reduced (if
necessary, to zero) so that the amount of the Total Payments is equal to the Safe
Harbor; provided, however, that, to the extent permitted by Section 409A of the Code,
the Executive may elect to have the cash Severance Payments reduced (or eliminated)
prior to any reduction of the noncash Severance Payments.
(C) For purposes of determining whether any of the Total Payments will be
subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total
Payments shall be treated as “parachute payments” within the meaning of Section
280G(b)(2) of the Code, unless in the opinion of tax counsel (“Tax Counsel”)
reasonably acceptable to the Executive and selected by the accounting firm which was,
immediately prior to the Change in Control, the Company’s independent auditor (the
“Auditor”), such other payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii)
all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code
shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered, within the meaning of Section
280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable
compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of
any noncash benefits or any deferred payment or benefit shall be determined by the
Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
Prior to the payment date set forth in Section 6.3 hereof, the Company shall provide
the Executive with its calculation of the amounts referred to in this Section 6.2(C)
and such supporting materials as are reasonably necessary for the Executive to
evaluate the Company’s calculations. If the Executive disputes the Company’s
calculations (in whole or in part), the reasonable opinion of Tax Counsel with
respect to the matter in dispute shall prevail.
(D) (I) In the event that (1) amounts are paid to the Executive pursuant to
Section 6.2(A), (2) there is a Final Determination that the Excise Tax is less than
the amount taken into account hereunder in calculating the Gross-Up Payment, and (3)
after giving
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effect to such Final Determination, the Severance Payments are to be reduced
pursuant to Section 6.2(B), the Executive shall repay to the Company, within five (5)
business days following the date of the Final Determination, the Gross-Up Payment,
the amount of the reduction in the Severance Payments, plus interest on the amount of
such repayments at 120% of the rate provided in
Section 1274(b)(2)(B) of the Code.
Section 1274(b)(2)(B) of the Code.
(II) In the event that (1) amounts are paid to the Executive pursuant to
Section 6.2(A), (2) there is a Final Determination that the Excise Tax is less
than the amount taken into account hereunder in calculating the Gross-Up
Payment, and (3) after giving effect to such Final Determination, the
Severance Payments are not to be reduced pursuant to Section 6.2(B), the
Executive shall repay to the Company, within five (5) business days following
the date of the Final Determination, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by the
Executive), to the extent that such repayment results in a reduction in the
Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income
and wages for purposes of federal, state and local income and employment
taxes, plus interest on the amount of such repayment at 120% of the rate
provided in Section 1274(b)(2)(B) of the Code.
(III) Except as otherwise provided in clause (IV) below, in the event
there is a Final Determination that the Excise Tax exceeds the amount taken
into account hereunder in determining the Gross-Up Payment (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), the Company shall pay to the Executive,
within five (5) business days following the date of the Final Determination,
the sum of (1) a Gross-Up Payment in respect of such excess and in respect of
any portion of the Excise Tax with respect to which the Company had not
previously made a Gross-Up Payment, including a Gross-Up Payment in respect of
any Excise Tax attributable to amounts payable under clauses (2) and (3) of
this paragraph (III) (plus any interest, penalties or additions payable by the
Executive with respect to such excess and such portion), (2) if Severance
Payments were reduced pursuant to Section 6.2(B) but after giving effect to
such Final Determination, the Severance Payments should not have been reduced
pursuant to Section 6.2(B), the amount by which the Severance Payments were
reduced pursuant to Section 6.2(B), and (3) interest on such amounts at 120%
of the rate provided in Section 1274(b)(2)(B) of the Code.
(IV) In the event that (1) Severance Payments were reduced pursuant to
Section 6.2(B) and (2) the aggregate value of Total Payments which are
considered “parachute payments” within the meaning of Section 280G(b)(2) of
the Code is subsequently redetermined in a Final Determination, but such
redetermined value still does not exceed 110% of the Safe Harbor, then, within
five (5) business days following such Final Determination, (x) the Company
shall pay to the Executive the amount (if any) by which the reduced Severance
Payments (after taking the Final Determination into account) exceeds the
amount of the reduced Severance Payments actually paid to the Executive, plus
interest on the amount of such repayment at 120% of the rate provided in
Section 1274(b)(2)(B) of the Code, or (y) the Executive shall pay to the Company the amount (if any) by which the reduced Severance
Section 1274(b)(2)(B) of the Code, or (y) the Executive shall pay to the Company the amount (if any) by which the reduced Severance
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Payments actually paid to the Executive exceeds the amount of the reduced
Severance Payments (after taking the Final Determination into account), plus
interest on the amount of such repayment at 120% of the rate provided in
Section 1274(b)(2)(B) of the Code.
6.3 The payments provided in subsections (A) and (D) of Section 6.1 hereof shall be
made as soon as practicable (but in any event not later than the fifth day) following the
Date of Termination; provided that, to the extent required to satisfy the provisions of
Section 409A(a)(2)(B)(i) of the Code, such payments shall be made not earlier than but as
soon as practicable on or in any event within five days after (with interest at the 6-month
certificate of deposit rate published in The Wall Street Journal on the Date of Termination
(or if not published on that date, on the next following date when published) or, if less,
the maximum rate that will avoid, if applicable, the imposition of any additional excise
taxes under Section 4999 of the Code (the “409A Interest Rate”)) the date that is six (6)
months after the Date of Termination (the “409A Payment Date”). The payments provided in
Section 6.2 hereof shall be made on or as soon as practicable following the day on which the
Excise Tax is remitted (but not later than the end of the taxable year following the year in
which the Excise Tax is incurred). If the amounts of the payments described in the
preceding provisions of this Section 6.3 cannot be finally determined on or before the date
payment is to be made, the Company shall pay to the Executive (or shall cause the grantor
trust described in Section 6.5 to pay to the Executive) on such day an estimate, as
determined in good faith by the Executive or, in the case of payments under Section 6.2
hereof, in accordance with Section 6.2 hereof, of the minimum amount of such payments to
which the Executive is clearly entitled and shall pay (or cause to be paid) the remainder of
such payments (together with interest on the unpaid remainder (or on all such payments to
the extent the Company fails to make such payments when due) at 120% of the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no
event later than the 30th day after the date payment is to be made. In the event that the
amount of the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to the Executive, payable on the
fifth business day after demand by the Company (together with interest at 120% of the rate
provided in Section 1274(b)(2)(B) of the Code). At the time that payments are made under
this Agreement, the Company shall provide the Executive with a written statement setting
forth the manner in which such payments were calculated and the basis for such calculations
including, without limitation, any opinions or other advice the Company has received from
Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice
which are in writing shall be attached to the statement). To the extent the benefits to be
made available under subsections (B) and (E) of Section 6.1 hereof are not medical expenses
within the meaning of Treas. Reg. § 1.409A-1(b)(9)(v)(B) and are not short-term deferrals
within the meaning of Section 409A of the Code, then to the extent the fair market value of
such benefits during the first six months following the Date of Termination plus the
benefits provided under subsections (B) and (H) of Section 6.1 of the Existing CIC Agreement
exceeds two times the lesser of the Executive’s annualized compensation based upon the
Executive’s annual rate of pay for services during the taxable year of the Executive
preceding the year in which the Date of Termination occurs (adjusted for any increase during
that year that was expected to continue indefinitely had no separation from service
occurred) or the maximum amount that may be taken into account under a qualified plan
pursuant to Section 401(a)(17) of the Code for the year in which the Date of Termination
occurs, the Executive shall pay to the Company, at the time such benefits are provided, the
fair market value of such benefits, and the Company shall reimburse the Executive for any
such payment not later than the fifth day following the expiration of such six-month period;
provided, however, that this
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requirement for payment by the Executive and reimbursement by the Company shall apply
solely to the extent required by Section
409A(a)(2)(B)(i) of the Code.
409A(a)(2)(B)(i) of the Code.
6.4 The Company also shall pay to the Executive all legal fees and expenses incurred by
the Executive in disputing in good faith any issue hereunder relating to the termination of
the Executive’s employment, in seeking in good faith to obtain or enforce any benefit or
right provided by this Agreement or in connection with any tax audit or proceeding to the
extent attributable to the application of Section 4999 of the Code to any payment or benefit
provided hereunder. Such payments shall be made within five business days after delivery of
the Executive’s written requests for payment accompanied with such evidence of fees and
expenses incurred as the Company reasonably may require (but in no event shall any such
payment be made after the end of the calendar year following the calendar year in which the
expenses were incurred), provided that no such payment shall be made in respect of fees or
expenses incurred by the Executive after the later of the tenth anniversary of the Date of
Termination or the Executive’s death, and provided further, that, upon the Executive’s
separation from service with the Company, in no event shall any additional such payments be
made prior to the date that is six months after the date of the Executive’s separation from
service to the extent such payment delay is required under Section 409A(a)(2)(B)(i) of the
Code.
6.5 To the extent that the payment of any amount due under subsections (A) and (D) of
Section 6.1 hereof is delayed by reason of Section 409A(a)(2)(B)(i) of the Code, the Company
shall, on or as soon as practicable after the Date of Termination, contribute the amounts
otherwise payable pursuant to subsections (A) and (D) of Section 6.1 hereof, together with
six months interest thereon at the 409A Interest Rate (as defined in Section 6.3 hereof), to
a grantor (“rabbi”) trust of which the Executive is the sole beneficiary (subject to the
claims of the Company’s creditors, as required pursuant to applicable Internal Revenue
Service guidance to prevent the imputation of income to the Executive prior to distribution
from the trust), pursuant to which the amounts payable pursuant to subsections (A) and (D)
of Section 6.1 hereof shall be payable from the trust, together with the appropriate amount
of interest at the 409A Interest Rate (as defined in Section 6.3 hereof), on or as soon as
practicable and in any event within five days after the Section 409A Payment Date (as
defined in Section 6.3 hereof), provided that to the extent such amount is paid to the
Executive by the Company, the trust shall pay such amount to the Company.
7. Termination Procedures and Compensation During Dispute.
7.1 Notice of Termination. During the Initial Term and otherwise after a Change in
Control and during the Term, any purported termination of the Executive’s employment (other
than by reason of death) shall be communicated by written Notice of Termination from one
party hereto to the other party hereto in accordance with Section 10 hereof. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of
the Executive’s employment under the provision so indicated. For purposes of this Agreement,
any purported termination of the Executive’s employment shall be presumed to be other than
for Cause unless the Notice of Termination includes a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters (3/4) of the entire membership of the
Board at a meeting of the Board which was called and held for the purpose of considering
such termination (after reasonable notice to the Executive and an opportunity for the
Executive, together with the Executive’s counsel, to be heard before the Board) finding
that, in the
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good faith opinion of the Board, the Executive was guilty of conduct set forth in
clause (i) or (ii) of the definition of Cause herein, and specifying the particulars thereof
in detail.
7.2 Date of Termination. “Date of Termination,” with respect to any purported
termination of the Executive’s employment during the Initial Term or after a Change in
Control and during the Term, shall mean (i) if the Executive’s employment is terminated for
Disability, 30 days after Notice of Termination is given (provided that the Executive shall
not have returned to the full-time performance of the Executive’s duties during such 30 day
period), and (ii) if the Executive’s employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a termination by the Company,
shall not be less than 30 days (except in the case of a termination for Cause) and, in the
case of a termination by the Executive, shall not be less than 15 days nor more than 60
days, respectively, from the date such Notice of Termination is given, provided that, in the
case of a termination by the Executive, the Company may require a Date of Termination
earlier than that specified in the Notice of Termination upon payment to the Executive of
the full amount of base salary that would have been paid to the Executive had the Executive
continued employment between the actual Date of Termination and the Date of Termination
specified in the Notice of Termination).
7.3 Dispute Concerning Termination. If within 15 days after any Notice of Termination
is given, or, if later, prior to the Date of Termination (as determined without regard to
this Section 7.3), the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall be extended
until the earlier of (i) the date on which the Term ends or (ii) the date on which the
dispute is finally resolved, either by mutual written agreement of the parties or by a final
judgment, order or decree of an arbitrator or a court of competent jurisdiction (which is
not appealable or with respect to which the time for appeal therefrom has expired and no
appeal has been perfected); provided, however, that the Date of Termination shall be
extended by a notice of dispute given by the Executive only if such notice is given in good
faith and the Executive pursues the resolution of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination occurs during the Initial
Term or otherwise following a Change in Control and during the Term and the Date of
Termination is extended in accordance with Section 7.3 hereof, the Company shall continue to
pay the Executive the full compensation in effect when the notice giving rise to the dispute
was given (including, but not limited to, salary) and continue the Executive as a
participant in all compensation, benefit and insurance plans in which the Executive was
participating when the notice giving rise to the dispute was given, until the Date of
Termination, as determined in accordance with Section 7.3 hereof. Amounts paid under this
Section 7.4 are in addition to all other amounts due under this Agreement (other than those
due under Section 5.2 hereof) and shall not be offset against or reduce any other amounts
due under this Agreement.
8. No Mitigation. The Company agrees that, if the Executive’s employment with the Company
terminates during the Term, the Executive is not required to seek other employment or to attempt in
any way to reduce any amounts payable to the Executive by the Company pursuant to Section 6 hereof
or Section 7.4 hereof. Further, the amount of any payment or benefit provided for in this Agreement
(other than Section 6.1(B) hereof) shall not be reduced by any compensation earned by the Executive
as the result of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
9. Successors; Binding Agreement.
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9.1 The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to be obligated to perform this Agreement (whether by reason of
express assumption by the successor or by operation of law) in the same manner and to the
same extent that the Company would be required to perform it if no such succession had taken
place.
This Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive shall die while any amount would still
be payable to the Executive hereunder (other than amounts which, by their terms, terminate
upon the death of the Executive) if the Executive had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of the Executive’s
estate.
10. Notices. For the purpose of this Agreement, notices and all other communications provided
for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered
or mailed by United States registered mail, return receipt requested, postage prepaid, addressed,
if to the Executive, to the address of the Executive as maintained from time to time on the payroll
system of the Company and, if to the Company, to the address set forth below, or to such other
address as either party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon actual receipt:
To the Company:
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
11. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed by the Executive and such
officer as may be specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or of any lack of compliance with, any condition
or provision of this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. This
Agreement does not supersede the Existing CIC Agreement but is an additional benefit being entered
into between the Executive and the Company. However, this Agreement does supersede any other
agreements or representations, oral or otherwise, express or implied, with respect to the subject
matter hereof which have been made by the Executive or the Company; provided, however, that this
Agreement shall supersede any agreement setting forth the terms and conditions of the Executive’s
employment with the Company only in the event that the Executive’s employment with the Company is
terminated during the Initial Term or otherwise following a Change in Control, in any case by the
Company other than for Cause or by the Executive for Good Reason, excluding the Existing CIC
Agreement. No benefits shall be provided under this Agreement to the extent already provided under
the Existing CIC Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Texas without regard to its principles of
conflicts of law. All references to sections of the Exchange Act or the Code shall be deemed also
to refer to any successor provisions to such sections. Any payments provided for hereunder shall be
paid net of any applicable withholding required under federal, state or local law and any
additional withholding to which the Executive has agreed. The obligations of the Company and the
Executive under this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation, those under Sections 6
and 7 hereof) shall survive such expiration.
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12. Validity.
12.1 Any payments made to the Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and FDIC
Regulation 12 C.F.R. Part 359, Golden Parachute and Indemnification Payments.
12.2 The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
13. Counterparts. This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and the same instrument.
14. Settlement of Disputes. All claims by the Executive for benefits under this Agreement
shall be directed to and determined by the Board and shall be in writing. Any denial by the Board
of a claim for benefits under this Agreement shall be delivered to the Executive in writing and
shall set forth the specific reasons for the denial and the specific provisions of this Agreement
relied upon. The Board shall afford a reasonable opportunity to the Executive for a review of the
decision denying a claim and shall further allow the Executive to appeal to the Board a decision of
the Board within 60 days after notification by the Board that the Executive’s claim has been
denied.
15. Release. In exchange for the consideration from the Company provided in this Agreement,
to which Executive agrees that he is not already entitled, the Executive must sign a release of
claims in such form as provided by the Company, in favor of the Company and any entity owning a
controlling interest in the Company prior to the time of, and as a condition to, the payment of the
benefits hereunder.
16. Definitions. For purposes of this Agreement, the following terms shall have the meanings
indicated below:
(A) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under
Section 12 of the Exchange Act.
(B) “Auditor” shall have the meaning set forth in Section 6.2 hereof.
(C) “Base Amount” shall have the meaning set forth in Section 280G(b)(3) of the
Code.
(D) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
(E) “Board” shall mean the Board of Directors of the Company.
(F) “Cause” for termination by the Company of the Executive’s employment shall
mean (i) the willful and continued failure by the Executive to substantially perform
the Executive’s duties with the Company (other than any such failure resulting from
the Executive’s incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination for Good Reason by
the Executive pursuant to Section 7.1 hereof) after a written demand for substantial
performance is delivered to the Executive by the Board, which demand specifically
identifies the manner in which the Board believes that the Executive has not
substantially performed the Executive’s duties, or (ii) the willful engaging by the
Executive in conduct which is demonstrably and
11
materially injurious to the Company, monetarily or otherwise. For purposes of
clauses (i) and (ii) of this definition, (x) no act, or failure to act, on the
Executive’s part shall be deemed “willful” unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the Executive’s act,
or failure to act, was in the best interest of the Company and (y) in the event of a
dispute concerning the application of this provision, no claim by the Company that
Cause exists shall be given effect unless the Company establishes to the Board by
clear and convincing evidence that Cause exists.
(G) “Change in Control” shall be deemed to have occurred if the event set forth
in any one of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its Affiliates) representing 20% or more of the combined voting
power of the Company’s then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a transaction described in
clauses (a), (b) or (c) of paragraph (III) below;
(II) within any twenty-four (24) month period, the following individuals
cease for any reason to constitute a majority of the number of directors then
serving on the Board: individuals who, on the Effective Date, constitute the
Board and any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the election
of directors of the Company) whose appointment or election by the Board or
nomination for election by the Company’s shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date hereof or whose appointment,
election or nomination for election was previously so approved or recommended;
(III) there is consummated a merger, consolidation of the Company or any
direct or indirect subsidiary of the Company with any other corporation or any
recapitalization of the Company (for purposes of this paragraph (III), a
“Business Event”) unless, immediately following such Business Event (a) the
directors of the Company immediately prior to such Business Event continue to
constitute at least a majority of the board of directors of the Company, the
surviving entity or any parent thereof, (b) the voting securities of the
Company outstanding immediately prior to such Business Event continue to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, at
least 60% of the combined voting power of the securities of the Company or
such surviving entity or any parent thereof outstanding immediately after such
Business Event, and (c) in the event of a recapitalization, no Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of the
Company or such surviving entity or any parent thereof (not including in the
securities Beneficially Owned by such Person any securities acquired directly
from the Company or its Affiliates) representing 20% or more of the combined
voting power
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of the then outstanding securities of the Company or such surviving
entity or any parent thereof (except to the extent such ownership existed
prior to the Business Event);
(IV) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company;
(V) there is consummated an agreement for the sale, disposition or
long-term lease by the Company of substantially all of the Company’s assets,
other than (a) such a sale, disposition or lease to an entity, at least 50% of
the combined voting power of the voting securities of which are owned by
shareholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale or disposition or (b)
the distribution directly to the Company’s shareholders (in one distribution
or a series of related distributions) of all of the stock of one or more
subsidiaries of the Company that represent substantially all of the Company’s
assets; or
(VI) any other event that the Board, in its sole discretion, determines
to be a Change in Control for purposes of this Agreement.
Notwithstanding the foregoing, a “Change in Control” under clauses (I) through (V)
above shall not be deemed to have occurred by virtue of the consummation of any
transaction or series of integrated transactions immediately following which the
record holders of the common stock of the Company immediately prior to such
transaction or series of transactions continue to have substantially the same
proportionate ownership in one or more entities which, singly or together,
immediately following such transaction or series of transactions, own all or
substantially all of the assets of the Company as constituted immediately prior to
such transaction or series of transactions.
(H) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time
(I) “Company” shall mean Guaranty Financial Group Inc. and, except in
determining under Section 16(G) hereof whether or not any Change in Control of the
Company has occurred, shall include any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
(J) “Date of Termination” shall have the meaning set forth in Section 7.2
hereof.
(K) “Disability” shall be deemed the reason for the termination by the Company
of the Executive’s employment, if, as a result of the Executive’s incapacity due to
physical or mental illness, the Executive shall have been absent from the full-time
performance of the Executive’s duties with the Company for a period of six
consecutive months, the Company shall have given the Executive a Notice of
Termination for Disability, and, within 30 days after such Notice of Termination is
given, the Executive shall not have returned to the full-time performance of the
Executive’s duties.
(L) “Effective Date” shall mean the date on which the Executive executes this
Agreement.
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(M) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended
from time to time.
(N) “Excise Tax” shall mean any excise tax imposed under Section 4999 of the
Code.
(O) “Executive” shall mean the individual named in the first paragraph of this
Agreement.
(P) “Existing CIC Agreement” shall have the meaning set forth in the recitals
hereof.
(Q) “Final Determination” means a final determination by the Internal Revenue
Service or, if such determination is appealed, a final determination by any court of
competent jurisdiction.
(R) “Good Reason” for termination by the Executive of the Executive’s employment
shall mean the occurrence (without the Executive’s express written consent) during
the Initial Term (treating all references in paragraphs (I) through (IV) below to the
period “immediately prior to the Change in Control” as references to “immediately
after the Effective Date”), after any Change in Control, or prior to a Change in
Control under the circumstances described in clauses (i) and (ii) of the second
sentence of Section 6.1 hereof (treating all references in paragraphs (I) through
(IV) below to a “Change in Control” as references to a “Potential Change in
Control”), of any one of the following acts by the Company, or failures by the
Company to act, unless such act or failure to act is corrected prior to the Date of
Termination specified in the Notice of Termination given in respect thereof:
(I) a material reduction in the Executive’s authority, duties or
responsibilities, which for purposes of this Agreement shall include only the
assignment to the Executive of any duties substantially inconsistent with the
Executive’s status as a senior executive officer of the Company or a material
adverse alteration in the nature or status of the Executive’s responsibilities
from those in effect immediately prior to the Change in Control (including, as
applicable and without limitation, the Executive ceasing to be an executive
officer of a public company);
(II) a material diminution in base salary as in effect immediately prior
to the Change in Control;
(III) a material change in the geographic location at which the Executive
must perform services, which for purposes of this Agreement shall include only
the relocation of the Executive’s principal place of employment to a location
more than fifty (50) miles distant from the Company’s headquarters immediately
prior to the Change in Control or the Company’s requiring the Executive to be
based anywhere other than such principal place of employment (or permitted
relocation thereof) except for reasonably required travel on the Company’s
business; or
(IV) any other action or inaction that constitutes a material breach of
Section 5.4 or 9.1 of this Agreement.
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The Executive’s right to terminate the Executive’s employment for Good Reason shall not be
affected by the Executive’s incapacity due to physical or mental illness. The Executive’s
continued employment shall not constitute consent to, or a waiver of rights with respect to,
any act or failure to act constituting Good Reason hereunder, provided that the Executive
may not assert Good Reason in respect of any act or failure to act otherwise constituting
Good Reason hereunder unless asserted in a Notice of Termination given in respect thereof
within 90 days following the date of the first occurrence of such act or failure to act.
For purposes of any determination regarding the existence of Good Reason, any claim by the
Executive that Good Reason exists shall be presumed to be correct unless the Company
establishes to the Board by clear and convincing evidence that Good Reason does not exist.
(S) “Gross-Up Payment” shall have the meaning set forth in Section 6.2 hereof.
(T) “Initial Term” shall have the meaning set forth in Section 2 hereof.
(U) “Notice of Termination” shall have the meaning set forth in Section 7.1
hereof.
(V) “Pension Plan” shall mean any nonqualified, supplemental or excess benefit
pension plan maintained by the Company and any other plan or agreement entered into
between the Executive and the Company which is designed to provide the Executive with
supplemental retirement benefits, and any nonqualified, supplemental or excess
defined contribution plan maintained by the Company and any other defined
contribution plan or agreement entered into between the Executive and the Company.
(W) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or any of
its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(X) “Potential Change in Control” shall be deemed to have occurred if the event
set forth in any one of the following paragraphs shall have occurred:
(I) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control;
(II) the Company or any Person publicly announces an intention to take or
to consider taking actions which, if consummated, would constitute a Change in
Control;
(III) any Person becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 20% or more of either the then
outstanding shares of common stock of the Company or the combined voting power
of the Company’s then outstanding securities (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its Affiliates); or
15
(IV) the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
(Y) “Retirement” shall be deemed the reason for the termination by the Executive
of the Executive’s employment if such employment is terminated in accordance with the
Company’s retirement policy, including early retirement, generally applicable to its
salaried employees.
(Z) “Severance Payments” shall have the meaning set forth in Section 6.1 hereof.
(AA) “Tax Counsel” shall have the meaning set forth in Section 6.2 hereof.
(BB) “Term” shall mean the period of time described in Section 2 hereof
(including any extension, continuation or termination described therein).
(CC) “Total Payments” shall mean those payments so described in Section 6.2
hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement to be effective as of the
Effective Date.
| GUARANTY FINANCIAL GROUP INC. | ||||||
Date: |
||||||
| By: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | President & Chief Executive Officer | |||||
| EXECUTIVE | ||||||
Date: |
||||||
| By: | <name> | |||||
| Title: | <title> | |||||
16
